By: John Floyd – Houston Criminal Lawyer
Kentucky V. King: Warrantless Entry into Residence Reasonable When Exigent Circumstances Exist That Were Not Created By Police
The Fourth Amendment to the United States Constitution has historically protected Americans from unreasonable searches and seizures by law enforcement officials. The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment has two long recognized clauses: First, the prohibition against unreasonable searches and seizures; and, second, the requirement that probable cause be established before a search warrant is issued. There are “exigent circumstances” to these two constitutional requirements which allows law enforcement officials to conduct warrantless searches when 1) there is possible imminent destruction of evidence; 2) a real threat to the safety of the general public or law enforcement officials exist; 3) the police are in “hot pursuit” of a suspect; or 4) there is a likelihood that a suspect will flee before law enforcement can obtain a warrant.
The U.S. Supreme Court, in Kentucky v. King (May 16, 2011), recently expanded what has been called the “police-created exigency” doctrine in warrantless “kick down the door” searches of a residence. While the warrantless search of a home without a warrant has been traditionally viewed as presumptively unreasonable, law enforcement officials have been allowed to bypass this constitutional impediment when the “exigencies of the situation” make it reasonable to conduct a warrantless search of a suspect’s home. Over the years a number of state and federal courts formulated a rule that the police may not rely upon “exigent circumstances” to justify warrantless searches when the “exigency” was created or manufactured by the police. The Fifth Circuit Court of Appeals, in United States v. Gould (en banc), put it this way: “[A]lthough exigent circumstances may justify a warrantless probable cause entry into a home, they will not do so if the exigent circumstances were manufactured by the agents.”
The Kentucky Supreme Court, in King v. Kentucky (Feb. 11, 2010), followed the lead of the Fifth Circuit, and other federal circuits, when it reversed the drug conviction of Hollis King. The Lexington police conducted a “controlled buy” of crack cocaine outside of an apartment complex. The drug dealer/target of their investigation engaged in a sell of the drug which was witnessed by an undercover agent. Once the transaction was over and while the drug dealer was moving quickly toward the breezeway of the apartment, the undercover agent instructed uniformed officers to “hurry up and get there” before the dealer entered the apartment complex. Just as the uniformed officers arrived at the breezeway, they heard an apartment door shut and “detected a very strong odor of burnt marijuana.” The uniformed officers were looking at two apartments—one on the right, the other on the left. They were not sure which one the drug dealer had entered. Because they smelled the burnt marijuana in the apartment on the left, they believed that was the one the suspect had entered.
The uniformed officers banged on the door as “loud” as they could and announced, “this is the police” or “police, police, police.” The uniformed officer stated that once they started banging on the door, they could hear people moving about inside the apartment as though things were being moved. These noises led the officers to believe that drug evidence was being destroyed by the apartment’s occupants. The officers announced they “were going to make entry inside the apartment.” They proceeded to kick down the door and entered the apartment where they found Hollis King, his girlfriend, and a guest who was smoking marijuana. The officers found evidence of marijuana and powder cocaine in “plain view.” A more thorough search of the apartment revealed crack cocaine, cash and drug paraphernalia. But the uniformed officers did not find the initial targeted drug dealer. He was discovered in a subsequent search of the apartment on the right.
King was arrested and subsequently indicted by a grand jury for trafficking in marijuana, first-degree trafficking in a controlled substance, and a second-degree persistent felony-offender status. Prior to trial, King’s attorneys filed a motion to suppress the evidence seized from the warrantless search which was denied by the trial court. That court concluded the officers had “probable cause” to investigate the smell of marijuana odor and that they had “properly conducted” an investigation by knocking on the door and awaiting a response and/or consent to enter. While King ultimately entered a guilty plea to the charges, his plea was conditioned on the right to pursue the suppression issue through the appellate process. While the Kentucky Supreme Court observed that the sounds of people moving about in the apartment raised “some question” about whether evidence was possibly being destroyed in the apartment, the state’s highest court elected not to reach this specific question but instead concluded that indeed there existed “exigent circumstances” for the search.
This conclusion created the constitutional sticky-wicket by the Kentucky Supreme Court which prompted the U.S. Supreme Court to hear the King case. The Kentucky court announced a two-part test to determine whether the police “impermissibly created the exigency.” The first part of the test held that the police cannot “deliberately create the exigent circumstances with the bad faith intent to avoid the warrant requirement” while the second part of the test held that, even in a case where “bad faith” is absent, the police may not rely upon the exigent circumstances to the warrant requirement if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” Although the state’s high court did not find any evidence of “bad faith” by the officers in the King case, the court held that the exigent circumstances in the case did not warrant the “kick down the door” search because it was “reasonably foreseeable” that the occupants of the apartment would attempt to destroy the evidence once the police knocked on the door and announced their presence.
It was this two-part test that prompted eight of the nine justices of U.S. Supreme Court, in an opinion written by Justice Samuel Alito, to put the brakes on the lower court’s five different interpretations of the “police-created exigency” doctrine. Alito characterized the Kentucky Supreme Court’s interpretation of the doctrine as “unsound” and, therefore, constitutionally unacceptable. Alito pointed out that the court has consistently held that the lower courts should apply an “objective standard” over a “subjective approach” in determining whether the exigent circumstances justified a particular warrantless search. In other words, whether the “exigent circumstances” justified the police action, not the officers’ motives. The high court then discussed the three constitutional issues the lower courts have established surrounding the “police-created exigent” doctrine: reasonable foreseeability; probable cause and time to secure a warrant; and standard or good investigative tactics.
Reasonable Foreseeability: “Some courts, again including the Kentucky Supreme Court, hold that police may not rely on an exigency if ‘it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances. Courts applying this test have invalidated warrantless home searches on the ground that it was reasonably foreseeable that police officers, by knocking on the door and announcing their presence, would lead a drug suspect to destroy evidence.
“Contrary to this reasoning, however, we have rejected the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance… we [have] held that the police may seize evidence in plain view even though the officers may be ‘interested in an item of evidence and fully expect to find it in the course of a search.’
“Adoption of a reasonable foreseeability test would also introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonable foreseeability, it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.
“A simple example illustrates the difficulties that such an approach would produce. Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50% chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right. Under those circumstances, would it have been reasonably foreseeable that the occupants of the apartment on the left would seek to destroy evidence upon learning that the police were at the door? Or suppose that the officers knew only that the suspect had disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police chose a door at random and knocked for the purpose of asking the occupants if they knew a person who fit the description of the suspect, would it have been reasonably foreseeable that the occupants would seek to destroy evidence?
“We have noted that ‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving. The reasonable foreseeability test would create unacceptable and unwarranted difficulties for law enforcement officers who make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the time.”
Probable Cause and Time to Secure a Warrant: “Some courts, in applying the police-created exigency doctrine, fault law enforcement officers if, after acquiring evidence that is sufficient to establish probable cause to search particular premises, the officers do not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search.
“This approach unjustifiably interferes with legitimate law enforcement strategies. There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired. Without attempting to provide a comprehensive list of these reasons, we note a few.
“First, the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also ‘may result in considerably less inconvenience’ and embarrassment to the occupants than a search conducted pursuant to a warrant. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available. And finally, in many cases, law enforcement may not want to execute a search that will disclose the existence of an investigation because doing so may interfere with the acquisition of additional evidence against those already under suspicion or evidence about additional but as yet unknown participants in a criminal scheme.
“We have said that ‘law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.’ Faulting the police for failure to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.”
Standard or Good Investigative Tactics: “Finally, some lower court cases suggest that law enforcement officers may be found to have created or manufactured an exigency if the court concludes that the course of their investigation was ‘contrary to standard or good law enforcement practices (or to the policies or practices of their jurisdictions).’ This approach fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.”
Justice Ruth Bader Ginsburg was the only justice to dissent in the King decision, summing up her dissent with the following observation: “Police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.” Civil libertarians have joined Justice Ginsburg’s constitutional criticism of the King decision. We agree. While we generally agree with most of the common sense “exigent circumstances” exceptions, the Kingdecision expands “police powers” to the point that they can “kick down the door” of an individual’s home, once constitutionally considered to be his/her castle, based solely on the noise of its occupants shuffling around and the smell of burnt marijuana. The King decision is fairly consistent with what the Texas Court of Criminal Appeals has held about warrantless home searches based solely on the smell of burnt marijuana, although the TCCA stopped short of saying that marijuana odor, standing alone, establishes probable cause to arrest any of the resident’s occupants.
The King decision failed to address what we feel is one significant point. The initial investigation at the Lexington apartment complex targeted a suspected crack cocaine dealer. The police knew he went into the complex area, but did not know which apartment he entered. They had two choices: an apartment on the left and one on the right. They chose the one on the left for no other reason than the smell of burnt marijuana. They had absolutely no evidence that either the crack cocaine dealer or crack cocaine itself would be found in the apartment on the left. Once they chose to bang on the door and announce their presence, they heard noises coming from the apartment that indicated possible destruction of drug evidence.
The basic problem we have with the King decision is that the police had ample time to secure a warrant. There were several uniform officers on the scene to monitor the comings and goings of any of the occupants of either apartment. They had a description of the targeted suspect and an undercover operative who could identify him, thus, there was no opportunity for him to escape – and since none of the occupants were aware of the police presence outside either apartment, there was little likelihood for the destruction of any drug evidence inside the apartments. The uniformed officers could have easily radioed the undercover operative to secure a search warrant based on the smell of burnt marijuana in the left apartment and thereafter executed a proper search of the residence.
But granting the police the power to “kick down the door” based solely on the smell of marijuana and the shuffling noises inside the apartment after announcing a police presence expands the “police-created exigent” doctrine too much. The smell of burnt apple pie could be “mistaken” for the smell of burnt marijuana, particularly by an officer in hot pursuit of a crack cocaine dealer, looking for a reason to enter a residence. As for the sound of shuffling noises emanating from an apartment after the announcement of the “police,” most dwellers in crime-ridden, drug infested apartment complexes do not readily open their doors to “banging on those doors” or shouts, “police, police.” They have been victimized too often by home invaders pretending to be police. Quite naturally such residents are going to shuffle around trying to protect children or secure a self-defense position before opening their door to the “police.”
Law enforcement agencies had more than ample power under the “police-created exigent” doctrine before the King decision. The police now have the power to do as they please when it comes to “kicking down doors” of otherwise law-abiding citizens. The tragedy is that the police will not “kick down the door” of a exclusive River Oaks home in Houston but they will do just that at a residence located in the many of city’s less affluent neighborhoods, regardless of the law abiding nature of its inhabitants. That’s what happens when the police are granted too much power as they were in the King decision.